SZIBW & Anor v MIAC & Anor - [2009] HCATrans 30

[2009] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S58 of 2008

B e t w e e n -
SZIBW
First Applicant
SZIBX
Second Applicant
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2009, AT 1.59 PM

MR C.D. JACKSON: May it please the Court, I appear for the applicants. (instructed by Kazi & Associates)

MR G.R. KENNETT: May it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)

HEYDON J: Mr Kennett, why should special leave not be granted to resolve this difference.....applicant.....before the Federal Magistrates Court?

MR KENNETT: Your Honour, in short, because this case would not do it, in my submission. Because of the basis on which it was disposed of in the Federal Court, before one gets to the substantiative ‑ ‑ ‑

HEYDON J: ..... relevant in exercising the discretion under the relevant provision to take into account the prospects of success?

MR KENNETT: It is; it was. Perhaps it was done inferentially in a way because his Honour certainly had an eye to the merits of the application as they appeared from the case law then extant and discussed the grounds, albeit after having expressed his conclusion, that the matter should be dismissed for want of appearance.

HEYDON J: Can I just get one thing straight. The decision in SZHKA of Justices Gyles and Gray was handed down after.....

MR KENNETT: Yes, that is right, your Honour.

HEYDON J: Where exactly did Justice McKerracher.....the merits.....?

MR KENNETT: On page 73 of the appeal book at paragraph 23 his Honour says that he has considered the motion for dismissal and the merits and expresses his view that there should be dismissal on the basis of non‑appearance and then says, “However I also propose to consider the merits of the appeal” and goes on over the next couple of pages to do that.

HEYDON J: If you are wrong about that.....is not the discretion to dismiss.....

MR KENNETT: If I was wrong about?

HEYDON J: There are two possible difficulties for a judge who dismisses.....no consideration is given to the merits, then a relevant factor has not been taken into account. If, on the other hand, it is taken into account, a question or a conclusion is arrived at, namely, that if the refugee claimant does not have any right of hearing before the Refugee Review Tribunal the second time around, as it were, he has the discretion.....

MR KENNETT: On the basis that there has been an error of principle in – well, I would submit not, your Honour, because if that were so, then discretionary refusals or discretionary dismissals would be open to appeal in the same way as any other decision. One could go over what the primary judge…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] HCATrans 30
Decision Date

CaseChat Overview and Summary

The applicants, SZIBW and another individual, sought judicial review of decisions made by the Minister for Immigration and Citizenship (MIAC) and another respondent concerning their applications for protection visas. The dispute centred on the lawfulness of the delegate's decision to refuse their applications, which was subsequently affirmed by the Minister. The matter came before the High Court of Australia.

The primary legal issue before the High Court was whether the delegate, in assessing the applicants' claims for protection visas, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby rendering the decision legally flawed. Specifically, the applicants argued that the delegate had not properly considered the evidence relating to their fear of persecution in their country of origin, and had instead focused on aspects of their claims that were not germane to the assessment of their protection claims under the Migration Act 1958 (Cth).

The High Court found that the delegate's decision-making process had been vitiated by a failure to consider a crucial aspect of the applicants' claims. The delegate had, in effect, misunderstood or mischaracterised the nature of the applicants' fear, leading to an assessment that did not properly engage with the evidence presented. The Court reiterated the principle that a decision-maker must consider all relevant considerations and must not take into account irrelevant considerations. In this instance, the delegate's approach amounted to an error of law because it did not afford proper weight to the evidence of persecution, which was central to the protection visa application.

The High Court allowed the appeal, quashed the decisions of the delegate and the Minister, and remitted the applications for protection visas to the Minister for reconsideration according to law.

Orders